Citation Nr: 9829896
Decision Date: 10/07/98 Archive Date: 10/13/98
DOCKET NO. 96-11 590 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Whether new and material evidence has been submitted to
warrant reopening the claim of service connection for
hypertension.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. Johnson, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1973 to August
1977, and from December 1990 to May 1991. The veteran has
reported a period of National Guard service beginning in
1981. See VA Form 21-526, dated and received in March 1994.
These matters initially came to the Board of Veterans’
Appeals (Board) from decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in Colombia, South
Carolina.
By rating decision of June 1995, the RO denied the claim of
service connection for PTSD. In February 1996, VA received
the veteran’s notice of disagreement and a statement of the
case was issued. In March 1996, VA received the veteran’s
substantive appeal. In December 1996, the veteran appeared
and testified before a hearing officer at the RO regarding
this claim.
In April 1997, the RO determined that new and material
evidence had not been submitted to warrant reopening the
claim of service connection for hypertension, and the veteran
submitted his notice of disagreement. In May 1997, a
statement of the case was issued and the veteran submitted
his substantive appeal. In September 1997, the veteran
appeared and testified before a hearing officer at the RO
regarding this claim.
The Board notes that service connection for hypertension was
initially denied by a rating decision of September 1994,
which stated that, although there was a record of treatment
for hypertension in service, current evidence did not show
chronic hypertension. Now, however, the evidence is clear
that the veteran has chronic hypertension. Since new
evidence negates the basis of the original denial, the claim
should be reopened and subject to de novo review.
REMAND
As noted in the Introduction, the veteran has two periods of
active service. The claims folder includes the veteran’s
service medical records dated in 1991 and some records of
treatment in 1993, but not the entrance and separation
examination reports for his service in the 1990s. It is
noted that during his personal hearing in December 1996, the
veteran indicated that prior to his separation from service,
he was treated at Fort Jackson for problems he had upon his
return from the Persian Gulf. The claims folder also does
not include medical records for the period of service in the
1970s. Therefore, those records should be secured and
associated with the claims folder.
Additional development must also be completed with regard to
the veteran’s claim of service connection for PTSD. His
claims folder contains VA treatment records that reflect a
diagnosis of PTSD and an assessment that his PTSD is the
result of severe stressors he experienced during service in
the Persian Gulf. (The same psychologist, in a July 2, 1997,
report, links the veteran’s PTSD to service in Vietnam,
although the veteran did not serve there and has not so
alleged). Under these circumstances, his claim of
entitlement to service connection for PTSD is plausible and,
therefore, well grounded. See 38 U.S.C.A. § 5107 (West
1991); Zarycki v. Brown, 6 Vet. App. 91, 99 (1993). VA
therefore has a duty to assist him in developing the facts
pertinent to his claim. See 38 C.F.R. § 3.159 (1997);
Ivey v. Derwinski, 2 Vet. App. 320 (1992); White v.
Derwinski, 1 Vet. App. 519 (1991).
For service connection to be awarded for PTSD, three elements
must be present: (1) medical evidence establishing a clear
diagnosis of the condition; (2) credible supporting evidence
that the claimed in-service stressor actually occurred; and
(3) a causal link, established by the medical evidence,
between current symptomatology and the claimed in-service
stressor. 38 C.F.R. § 3.304(f) (1998); Cohen v. Brown,
10 Vet. App. 128, 138 (1997).
With regard to the first and third elements, the VA treatment
records do reflect a diagnosis of PTSD. In a December 1996
report, the veteran’s VA psychologist reported that the
veteran met the criteria for PTSD under the American
Psychiatric Association's Diagnostic and Statistical Manual
of Mental Disorders (3rd Ed. Rev’d.)("DSM-III-R"). However,
the Board points out that 38 C.F.R. § 4.125 was amended
effective in November 1996 to require that VA diagnoses of
mental disorders conform to DSM-IV. Recent case law suggests
that, where PTSD has been diagnosed, the duty to assist
requires a medical opinion as to the sufficiency of the
stressor(s) and their causal impact on the veteran's current
symptomatology. Dizoglio v. Brown, 9 Vet. App. 163 (1996).
In adjudicating a claim for PTSD, the RO is required to
evaluate the supporting evidence in light of the places,
types, and circumstances of service. 38 U.S.C.A. § 1154(a)
(West 1991); 38 C.F.R. §§ 3.303(a), 3.304 (1998). Any
evidence available from the service department indicating
that the veteran served in the area in which the stressful
event is alleged to have occurred and any evidence supporting
the description of the event are to be made part of the
record. Zarycki v. Brown, 6 Vet. App. 91, 97 (1993).
Where it is determined that the veteran was engaged in
combat with the enemy and the claimed stressors are related
to such combat, the veteran's lay testimony regarding the
claimed stressors is accepted as conclusive as to their
actual existence absent clear and convincing evidence to the
contrary. Where the veteran did not engage in combat or
there is no evidence of combat service or the claimed
stressor is not related to combat, lay testimony of the
veteran, standing alone, is not sufficient to establish
occurrence of the alleged stressor. See West v. Brown, 7
Vet. App. 70 (1994). Moreover, if the veteran did not
engage in combat with the enemy, his bare allegations of
service stressors are insufficient to establish their
occurrence; in such a case, the stressors must be
corroborated by official service records or other credible
supporting evidence. Therefore, the available service
records must support, and not contradict, the veteran's lay
statement concerning his noncombat related stressors. Doran
v. Brown, 6 Vet. App. 283 (1994).
In this case, the records reflect service in the Desert Storm
area of responsibility from January 8, 1991, to March 20,
1991, and that the veteran was a still photo technician. The
veteran provided detailed accounts of his stressors in a
written statement received by VA in April 1995 and during his
personal hearing in December 1996. The veteran described
scenes he was assigned to photograph, and having experienced
scud attacks. Although this information has been provided
and is of record, the veteran’s stressors have not been
verified.
In view of the foregoing, and in order to fully and fairly
evaluate the veteran’s claim, the case is REMANDED to the RO
for the following development:
1. The RO should make another attempt to
secure the veteran's service medical
records for both periods of active
service, as well as any records in the
possession of the veteran’s National
Guard or Reserve unit, through official
channels. Once secured, the records
should be associated with the claims
folder.
2. The RO should obtain current medical
records related to the treatment of
psychiatric disorders. After securing
the necessary releases for private
records, all such records should be
obtained and associated with the claims
folder.
3. The RO should prepare a detailed
summary of all of the claimed stressors
based upon a review of all pertinent
documents, including the veteran's
written statements received by VA in
April 1995 and presented during his
personal hearing in December 1996. This
summary, and copies of all associated
documents, should be sent to the United
States Armed Services Center for Research
of Unit Records (USASCRUR) at 7798 Cissna
Road, Suite 101, Springfield, Virginia,
22150, which should be requested to
provide any information which might
corroborate the occurrence of any of the
claimed stressors.
4. The RO should then schedule the
veteran for an examination to determine
the nature and etiology of all
psychiatric disorders that are currently
present. The examination report should
explicitly reflect review by the examiner
of all pertinent information in the
claims folder. The examiner should
indicate, if possible, the date of onset
of all psychiatric disorders found. If a
psychosis is diagnosed, the examiner
should determine when, in the record, it
was first manifested. If PTSD is found
to be present, the examiner should
specify (1) whether each stressor
specified by the USASCRUR and/or claimed
by the veteran was sufficient to produce
PTSD in the veteran; (2) whether the
remaining diagnostic criteria to support
a diagnosis of PTSD have been met; and
(3) whether there is a link between the
current symptomatology and the stressor
or stressors in service whose occurrence
has been established. Finally, if PTSD
is ruled out, the examiner should state
whether the veteran shows
neuropsychological signs and symptoms
which are manifestations of chronic
disability due to undiagnosed illness.
The examination report should include a
complete rationale for all opinions
expressed. All necessary special studies
or tests, including psychological testing
and evaluation, should be accomplished as
part of this examination. The claims
folder and a copy of this remand must be
made available to the examiner for review
in conjunction with the examination.
5. The veteran should be afforded a
cardiovascular examination to determine
whether chronic hypertension is present
and, if so, whether it is at least as
likely as not that, in retrospect, the
elevated blood pressure readings in
service were the first manifestation of
hypertension.
6. The RO should adjudicate the claims
of entitlement to service connection for
PTSD and hypertension. The claim of
service connection for PTSD should be
readjudicated under all applicable
statutes and regulations, including 38
C.F.R. § 3.304(f) (1998). If the
actions taken remain adverse to the
veteran, a Supplemental Statement of the
Case should be issued, which includes a
summary of additional evidence
submitted, any additional applicable
laws and regulations, including those
covering presumptive disabilities, and
the reasons for the decisions. The
veteran and his representative should be
afforded the applicable time to respond.
Thereafter, subject to current appellate procedures, the
case should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until he is further informed. The purpose of this
REMAND is to obtain additional information and to afford the
veteran due process of law. The Board intimates no opinion,
either factual or legal, as to the ultimate conclusion
warranted in this case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
J. E. Day
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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